_______ is the cоmpоnent оf persuаsion thаt refers to the nаture of credibility of the source. a. Ethos b. Logos c. Mythos d. Pathos
Pleаse reаd the fоllоwing excerpt. The Fоrms аnd Functions of Tort Law Kenneth S. Abraham The law of torts (a name derived from the Latin word for “twisted” and from the French word for injury or “wrong”) mainly concerns the rights of private parties to obtain monetary compensation from those who have caused them injury or damage. Most of tort law is “common law,” that is, law made by courts rather than legislatures. Legislatures enact statutes, whereas courts decide individual cases. A series of judicial decisions based on the same principle—usually at the appellate level—then comes to stand for a rule of law. Most tort law is made by state rather than federal courts. So although reference often is made to “the” law of torts, in fact there are fifty-one separate state regimes of tort law. These different bodies of state tort law are nonetheless sufficiently similar in important respects to constitute one body of law with variations within it… It is common to begin studying tort law by considering the intentional tort of battery… Battery involves an unconsented-to actual physical contact, whereas assault is the threat of contact. * * * A battery is a harmful or offensive contact with another, resulting from an intention to cause that contact, or from an intention to put another in apprehension that a harmful or offensive contact is imminent. Unpacking this definition reveals each of its features. Battery is an intentional tort, but as we will see below, the courts are divided as to the intent required. Some courts require that the defendant intend only a physical contact that turns out to be harmful or offensive. Other courts require that the defendant not only intend the contact, but also intend that it be harmful or offensive. In many and perhaps most cases, the difference does not matter, because defendants have both intents. In a few cases, as I will explain below, the indifferent or oblivious defendant is liable under the single-intent standard but is not liable under the dual-intent standard. Remember, however, that even under the single-intent standard there is no liability unless the contact actually turns out to be harmful or offensive, even if the defendant did not intend it to be. 1. The Physical Contact Requirement There must be some physical contact with the plaintiff, or at least something that is in contact with the plaintiff. Ordinarily this is direct physical contact between the plaintiff and the defendant. But the contact may be by some object set in motion by the defendant, such as a weapon, or by some force such as electricity. In fact, the force need not literally be set in motion by the defendant, as long as the contact results from the defendant’s intention. For example, in Garratt v. Dailey, the defendant a pulled chair out from under the plaintiff as she was about to sit down. The plaintiff was injured when she fell to the ground. Literally speaking it was the plaintiff who, by attempting to sit down, set in motion the force that caused her injury. But the harmful contact with the ground was intended (or at least expected) by the defendant, and that was sufficient to satisfy this element of the tort… 2. Harmful or Offensive Contact The contact at issue in battery need not cause actual physical injury to the plaintiff; an offensive but not harmful contact is sufficient. What is “offensive” is likely to be context-dependent. “Offends a reasonable sense of personal dignity” is a good working definition. Certainly it would be a jury question, at the least, whether an unwanted kiss was offensive even if planted politely on the cheek. And some courts probably would grant a motion for a directed verdict for the plaintiff on this issue if they followed the single-intent standard. Similarly, in most circumstances a pat on the back is both harmless and inoffensive. But a pat on the back of a female employee by a male supervisor whose romantic advances the employee has rejected in the past is offensive in context. Any contact that intentionally interferes with a reasonable sense of personal dignity is offensive. Of course, a certain amount of touching and jostling is to be expected in a crowded world, but an “invasion” of bodily autonomy—a touching without consent—may be offensive even if it is not physically harmful. The tort of battery protects not only physical security, but also personal autonomy and dignity. Sometimes everything depends on whether the touching in question is or is not ordinarily to be expected under the circumstances. For example, in Vosburg v. Putney, the defendant (age eleven) reached his foot across the aisle of a classroom and either touched or kicked the plaintiff’s leg. The defendant did not intend to harm the plaintiff, but the contact aggravated an earlier injury. The court held that the plaintiff could maintain an action for battery under these circumstances, emphasizing that the defendant’s behavior was a violation of the order and decorum of the classroom. The court even called the behavior “unlawful,” by which it apparently meant “inappropriate,” (and offensive) under the circumstances and therefore not impliedly consented to by the plaintiff. In reaching this conclusion, the court distinguished what might be expected in a classroom—order and decorum without physical contact—from what might be expected on a school playground, and therefore what is impliedly consented to in other such settings, including a certain amount of non-malicious but intentional physical contact. 3. Intent There can be no battery without the requisite intent on the part of the defendant. But that intent is not necessarily an intent to harm. The defendant must intend the contact against which the law protects the plaintiff, and under the dual-intent standard must intend the contact to be harmful or offensive. Thus, in Vosburg, the circumstances in which the parties found themselves (a classroom) gave the plaintiff the right not to be touched by the defendant. That the defendant intended the touching was sufficient, even though the defendant did not necessarily intend the touching to be harmful or offensive. Apparently the single-intent standard was in force. Further, the defendant must either desire to bring about such contact, or act with substantial certainty (i.e., expect) that the contact will result from his actions. In Garrett v. Dailey, for example, there was evidence that the defendant knew that the plaintiff would make contact with the ground when he pulled the chair away as she was sitting down. It is not sufficient, however, for the defendant to know that his action merely risks contact if there is no intent to cause such contact. There must be more than a mere awareness of risk; awareness of near-certainty is required. The result of this approach is that, if the defendant acts with an intent to cause contact, it does not matter that the probability of harm or offense is low; liability is imposed if what was intended occurs. On the other hand, if the defendant does not intend contact there must be a near certainty that it will occur. When there is also intent to cause harm or offense, as is required under the dual standard, the result is uncontroversial. Acting with the intent to cause harm or offense is so objectionable that even when the probability of harm or offense is low, the intent standard is satisfied. But when one does not desire harm or offense to occur, his conduct is merely risky until he knows that harm or offense is substantially certain to result from it. Such low-risk action might constitute some other tort, such as negligence, but it is not battery, even when the unintended harm occurs. On the other hand, when the defendant intends contact but intends neither harm nor offense, the defendant is arguably less blameworthy, even if the contact turns out to be harmful or offensive. Under the dual-intent standard there is no liability. The intent standard is subjective. The question is whether this defendant had the requisite state of mind, not what people similarly situated would have intended under the same circumstances. But it is important to distinguish the subjective nature of the intent standard in battery from the objective evidence that might be employed to prove that the standard was or was not breached. Truly “direct” evidence of a defendant’s state of mind usually is not available, unless the defendant actually has voiced his intention to cause harm or contact. So the plaintiff’s proof often is “external” to the mind of the defendant and therefore is only “circumstantial” evidence of intent. That is, the jury is permitted to infer that the defendant did or did not intend the harm or contact at issue from the surrounding circumstances. The jury must determine the likely internal, subjective state of mind of the defendant based on the objective, or at least external, facts. What facts were staring the defendant in the face? What is his explanation for the action he took? What was the history of relations between plaintiff and defendant? Answers to these and similar questions are the typical basis for the jury’s decision about the defendant’s subjective state of mind.
On mоst sоciаl mediа plаtfоrms, the user is the...